Judge: No cause to jail Swain sex offender
Computer access to porn can't be proved
By Jon Ostendorff
STAFF WRITER
published: April 20, 2005 6:00 am
BRYSON CITY - Superior Court Judge James L. Baker Tuesday ruled Tuesday that prosecutors were unable to prove a former Swain County foster parent convicted of taking indecent liberties with children had access to pornography investigators found on his computer.
Robert John Dirscherl, 57, could have served about five years in prison if the state had proved he violated a probation agreement issued after his conviction last year on three felony counts of taking incident liberties with a child. The victims were foster children placed in his home by the county's Department of Social Services.
His probation prevented him from possessing pornography. A specialist with the State Bureau of Investigation found more than 1,000 images of naked adults or adults in sex acts on one of Dirscherl's computers taken after a search of his home in November. The images came from adult Internet sites.
Dirscherl's attorney, Mark Melrose of Sylva, argued the state couldn't prove whether his client accessed the images or whether some other person living in the home was responsible.
Dirscherl, at the time, lived with his wife and a 19-year-old man.
Melrose said the images found on the computer were the "21st-century equivalent of finding a Playboy magazine under (the 19-year-old's) bed."
The day-and-a-half long probation hearing was unusually long, Melrose said.
"There was tremendous public pressure and hysteria to try to incarcerate this guy," Melrose said. "But the district attorney agreed with full understanding of the facts that probation was appropriate. Last year they thought it was justice."
District Attorney Michael Bonfoey last year fired the prosecutor who handled the case because he did not have approval to offer a deal that spared Dirscherl a prison sentence.
Bonfoey said he could not comment on the probation violation hearing, citing new charges of indecent liberties with children filed against Dirscherl.
Those cases are scheduled to go to court in Haywood County in August. The case has been moved from Swain County because of concerns that publicity about the charges last year might prevent Dirscherl from receiving a fair trial.
The November search that uncovered the images was the only search of the Dirscherl home since his conviction despite a part of the probation agreement that allows officers to search at any time without a court-ordered warrant.
Dirscherl, Melrose said, has been a model probationer. He has paid his fines and attended counseling sessions.
Melrose said the state was using the probation violation to change a plea deal the public was unhappy with.
"They were grasping at straws," he said. "Their motivation was to try to find any possible mechanism to put him in prison. Judge Baker made a fair decision based on the facts."
Contact Ostendorff at 452-1467 or
jostendorff@CITIZEN-TIMES.com.
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